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COMMISSION ON HUMAN RIGHTS ADOPTS 11 RESOLUTIONS ON CIVIL AND POLITICAL RIGHTS
19 April 2005
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Commission on Human Rights
MIDDAY
19 April 2005
Adopts Basic Principles and Guidelines on the Right to Remedy
for Victims of Gross Violations of Human Rights Law
and Humanitarian Law
The Commission on Human Rights at a midday meeting adopted 11 resolutions on civil and political rights, including on enforced and involuntary disappearances, arbitrary detention, strengthening essential foundations of democracy, the integrity of the judicial system, democracy and the rule of law, and extrajudiciary or arbitrary executions.
The Commission also approved a resolution on the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by a roll-call vote of 40 in favour to none against, with 13 abstentions, in which it adopted the Basic Principles and recommended that States take them into account and promote them. In cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States had the duty to investigate and, if there was sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him. As regards to the treatment of victims, the Principles stated that victims should be treated with humanity and respect for their dignity and human rights, and appropriate measures should be taken to ensure their safety, physical and psychological well being and privacy, as well as those of their families.
Moreover, remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim's right to the following as provided for under international law: equal and effective access to justice; adequate, effective and prompt reparation for harm suffered; and access to relevant information concerning violations and reparation mechanisms. A victim of a gross violation of international human rights law or of a serious violation of international humanitarian law should have equal access to an effective judicial remedy as provided for under international law, the Basic Principles declare. Compensation should be provided for any economically, assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from the gross violations of international human rights law and serious violations of international humanitarian law.
Mexico (on behalf of the Group of Latin American and Caribbean Countries), the United Kingdom, the United States, Argentina, Canada and India commented on this resolution.
In the resolution on enforced or involuntary disappearances, adopted without a vote, the Commission urged States to prevent the occurrence of enforced disappearances, including by guaranteeing that any person deprived of liberty was held solely in officially recognized and supervised places of detention, guaranteeing access to all places of detention by authorities and institutions. It also urged States to work to eradicate the culture of impunity for the perpetrators of enforced disappearances and to elucidate cases of enforced disappearances as crucial steps in effective prevention.
The Russian Federation commented on this resolution.
Concerning the resolution on arbitrary detention, adopted without a vote, the Commission encouraged States to respect and promote the right of anyone who was deprived of his/her liberty by arrest or detention to be entitled to bring proceedings before a court, in order that the court may decide without delay on the lawfulness of his/her detention and order his/her release if the detention was not lawful, in accordance with their international obligations. It urged concerned States not to extend states of emergency beyond what was strictly required by the situation.
With regards to the resolution on the strengthening of popular participation, equity, social justice and non-discrimination as essential foundations of democracy, adopted by a roll-call vote of 28 in favour to 14 against, with 11 abstentions, the Commission reaffirmed that free and fair elections, popular participation and control, collective deliberation and political equality were essential to democracy and must be realized through a framework of accessible, representative and accountable institutions subject to periodic change or renewal.
The Netherlands, speaking on behalf of the European Union and Romania, commented on this resolution.
In the resolution on the integrity of the judicial system, adopted as amended and by a roll-call vote of 52 in favour and none against, with 1 abstention, the Commission called upon States to ensure that the principles of equality before the courts and before the law were respected within their judicial systems, and reaffirmed that every convicted person should have the right to have his/her conviction and sentence reviewed by a higher tribunal according to the law.
The United States, the Russian Federation and Cuba commented on this resolution.
In the resolution on democracy and the rule of law, adopted by a roll-call vote of 46 in favour and none against, with 7 abstentions, the Commission, called upon States to make continuous efforts to strengthen the rule of law and promote democracy by upholding the separation of powers and by taking appropriate legislative, judicial and other institutional measures, among other things.
Cuba, Romania, China and Eritrea commented on this resolution.
And in a resolution on extrajudicial, summary or arbitrary executions, as orally amended, adopted by a roll-call vote of 36 in favour to none against, with 17 abstentions, the Commission strongly condemned once again all extrajudicial, summary or arbitrary executions that continued to take place throughout the world and noted with deep concern that in certain circumstances, cases of extrajudicial, summary or arbitrary executions may result in mass murder, ethnic cleansing or genocide.
The Netherlands (on behalf of the European Union), Pakistan (on behalf of the Organization of the Islamic Conference), Finland, the United States, and Pakistan commented on this resolution.
The Commission also adopted resolutions on human rights and forensic science, hostage taking, the independence and impartiality of the judiciary, jurors and assessors and the independence of lawyers, and the incompatibility between democracy and racism.
The United States, Eritrea and Brazil commented on those resolutions.
When the Commission started taking action on draft resolutions, the Chairperson postponed to a later date two draft resolutions on the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance and the comprehensive implementation of and follow-up to the Durban Declaration and Programme of Action (E/CN.4/2005/L.13), and on the situation of human rights in the Sudan (E/CN.4/2005/L.33/Rev.1) to a later date because they had been presented too late and were not yet available in all the official languages of the United Nations.
At the beginning of the meeting, the Committee held a general debate on the rationalization of the work of the Commission. Romania spoke under this agenda item, as did the non-governmental organizations International Human Rights Service and South Asia Human Rights Documentation Centre.
The Commission today is holding three back-to-back meetings. When it concluded its midday meeting at 3 p.m., the Commission immediately started its afternoon meeting which will last until 6 p.m. and during which it will continue to take action on draft resolutions on civil and political rights, the integration of the human rights of women and the gender perspective, and the rights of the child.
Action on Resolutions on Civil and Political Rights
In a resolution (E/CN.4/2005/L.39) on human rights and forensic science, which was adopted without a vote, the Commission recommended that the Office of the High Commissioner encourage forensic experts to coordinate further and promote the consolidation of relevant guidelines, with a view to harmonizing the procedures in forensic investigation and repatriation; also recommended that the Office of the High Commissioner encourage, as appropriate, the dissemination and use of the principles, best practices and manuals referred to in the present resolution and the promotion of forensic capacity-building, including training where necessary, particularly in countries without sufficient expertise in forensic science and related fields, for example through the training of local teams; and further recommended that the High Commissioner, with a view to promoting quality and consistency of forensic practice, facilitate the development and implementation of a common framework of operations based on existing standards and principles.
The Commission also requested the Secretary-General to provide appropriate resources, from within existing overall United Nations resources, to fund the activities of the Office of the High Commissioner in implementing the present resolution, including a revision of the Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.
In a resolution (E/CN.4/2005/L.40) on enforced or involuntary disappearances, adopted without a vote, the Commission stressed the importance of the work of the Working Group on enforced or involuntary disappearances, and encouraged it to pursue the execution of its mandate to continue to promote communication between families of disappeared persons and the Governments concerned, particularly when ordinary channels have failed, and to continue to consider the question of impunity in the light of the relevant provisions of the Declaration on the Protection of All Persons from Enforced Disappearance and of the final reports submitted by the Special Rapporteur appointed by the Sub-Commission on the Promotion and Protection of Human Rights. The Commission deplored the fact that some Governments had not provided for a long period of time substantive replies concerning claims of enforced disappearances in their countries and had not given due consideration to relevant recommendations concerning this subject made in the reports of the Working Group.
The Commission urged States to prevent the occurrence of enforced disappearances, including by guaranteeing that any person deprived of liberty was held solely in officially recognized and supervised places of detention, guaranteeing access to all places of detention by authorities and institutions whose competence in this regard had been recognized by the concerned State, maintaining official, accessible, up-to-date registers and/or records of detainees and ensuring that detainees were brought before a judicial authority promptly after detention. It also urged States to work to eradicate the culture of impunity for the perpetrators of enforced disappearances and to elucidate cases of enforced disappearances as crucial steps in effective prevention. Lastly, the Commission urged Governments to make provision in their legal systems for victims of enforced or involuntary disappearances or their families to seek fair, prompt and adequate reparation and in addition, where appropriate, to consider symbolic measures recognizing the suffering of victims and restoring their dignity and reputation.
ALEXEY VLASOV (Russian Federation), in a general comment, said the Russian Federation attached great importance to the resolution, which was an important contribution to the protection and promotion of human rights. The Government of the Russian Federation was also in favour of strengthening any legally-binding document on the subject of forced disappearances. However, the Russian Federation had some reservations with regard to the inter-sessional Working Group and felt that any consultations on the drafting of an international instrument should continue until consensus had been achieved on the most contentious issues on the draft.
In a resolution (E/CN.4/2005/L.41) on arbitrary detention, adopted without a vote, the Commission requested the States concerned to take account of the Working Group's views and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily deprived of their liberty and to inform the Working Group of the steps they had taken. The Commission also encouraged States to respect and promote the right of anyone who was deprived of his/her liberty by arrest or detention to be entitled to bring proceedings before a court, in order that the court may decide without delay on the lawfulness of his/her detention and order his/her release if the detention was not lawful, in accordance with their international obligations; and to concerned States not to extend states of emergency beyond what was strictly required by the situation, in accordance with the provisions of article 4 of the International Covenant on Civil and Political Rights, or to limit their effect. The Commission also noted with concern that a growing proportion of urgent appeals of the Working Group had been left unanswered and urged the States concerned to give the necessary attention to the urgent appeals addressed to them by the Working Group on a strictly humanitarian basis and without prejudging its possible final conclusions.
In a resolution (E/CN.4/2005/L.42) on the strengthening of popular participation, equity, social justice and non-discrimination as essential foundations of democracy, adopted by a roll-call vote of 28 in favour to 14 against, with 11 abstentions, the Commission reaffirmed that democracy was based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives and that in that context the promotion and protection of human rights and fundamental freedoms at the national and international levels should be universal and conducted without conditions attached; and that democracy, development and respect for human rights were independent and mutually reinforcing. The Commission also reaffirmed that free and fair elections, popular participation and control, collective deliberation and political equality were essential to democracy and must be realized through a framework of accessible, representative and accountable institutions subject to periodic change or renewal; and urged all States to take measures to eliminate obstacles and threats to democracy and to ensure that barriers to participation, such as illiteracy, poverty and discrimination, were overcome.
The result of the vote was as follows:
In favour (28): Bhutan, Brazil, Burkina Faso, China, Congo, Cuba, Ecuador, Egypt, Eritrea, Ethiopia, Gabon, Guinea, India, Indonesia, Kenya, Malaysia, Mauritania, Nepal, Nigeria, Pakistan, Qatar, Russian Federation, South Africa, Sri Lanka, Sudan, Swaziland, Togo and Zimbabwe.
Against (14): Australia, Canada, Finland, France, Germany, Hungary, Ireland, Italy, Netherlands, Republic of Korea, Romania, Ukraine, United Kingdom and United States.
Abstentions (11): Argentina, Armenia, Costa Rica, Dominican Republic, Guatemala, Honduras, Japan, Mexico, Paraguay, Peru and Saudi Arabia.
IAN DE JONG (Netherlands on behalf of the European Union and Romania) in an explanation of the vote before the vote, said the European Union and Romania regretted the tabling of this resolution, which lacked a definition of democracy and its practical implications on Government and exercise of power by citizens, and tended to present international cooperation and development as a pre-requisite for democracy. There should be no excuse for Governments not to allow their citizens to exercise their human rights and fundamental freedoms. There should be a vote on the resolution, and the European Union and Romania would vote against it. The European Union had decided to co-sponsor the Romanian draft resolution L.45.
In a resolution (E/CN.4/2005/L.43) on the integrity of the judicial system, adopted as amended and by a roll-call vote of 52 in favour and none against, with 1 abstention, the Commission urged States to guarantee that all persons brought to trial before courts or tribunals under their authority had the right to be tried in their presence, to defend themselves in person or through legal assistance of their own choosing and to have all the guarantees necessary for the defence; called upon States to ensure that the principles of equality before the courts and before the law were respected within their judicial systems, among other things, by providing to those being tried the possibility to examine, or to have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them; and reaffirmed that every convicted person should have the right to have his/her conviction and sentence reviewed by a higher tribunal according to the law. The Commission also called upon States that had military courts or special criminal tribunals for trying criminal offenders to ensure that such courts where required by applicable law were an integral part of the general judicial system and that such courts applied due process procedures that were recognized according to international law as guarantees of a fair trial, including the right to appeal a conviction and a sentence.
The result of the vote was as follows:
In favour (52): Argentina, Armenia, Australia, Bhutan, Brazil, Burkina Faso, Canada, China, Congo, Costa Rica, Cuba, Dominican Republic, Ecuador, Egypt, Eritrea, Ethiopia, Finland, France, Gabon, Germany, Guatemala, Guinea, Honduras, Hungary, India, Indonesia, Ireland, Italy, Japan, Kenya, Malaysia, Mauritania, Mexico, Nepal, Netherlands, Nigeria, Pakistan, Paraguay, Peru, Qatar, Republic of Korea, Romania, Russian Federation, Saudi Arabia, South Africa, Sri Lanka, Sudan, Swaziland, Togo, Ukraine, United Kingdom and Zimbabwe.
Against (0)
Abstention (1): United States
Before action was taken on the resolution, the Commission voted on three proposed amendments by the United States. On the amendment on operative paragraph 3, the Commission rejected the amendments by a roll-call vote of 4 in favour to 40 against, with 9 abstentions.
The result of the vote was as follows:
In favour (4): Australia, Canada, Eritrea and United States.
Against (40): Argentina, Armenia, Bhutan, Brazil, China, Costa Rica, Cuba, Dominican Republic, Ecuador, Finland, France, Germany, Guatemala, Guinea, Honduras, Hungary, India, Indonesia, Ireland, Italy, Japan, Kenya, Malaysia, Mexico, Nepal, Netherlands, Nigeria, Paraguay, Peru, Republic of Korea, Romania, Russian Federation, South Africa, Sri Lanka, Sudan, Swaziland, Togo, Ukraine, United Kingdom and Zimbabwe.
Abstentions (9): Burkina Faso, Congo, Egypt, Ethiopia, Gabon, Mauritania, Pakistan, Qatar and Saudi Arabia.
On operative paragraph 7, the Commission rejected the amendments by a roll-call vote of 6 in favour to 39 against, with 8 abstentions.
The result of the vote was as follows:
In favour (6): Australia, Canada, Eritrea, India, Pakistan and United States.
Against (39): Argentina, Armenia, Bhutan, Brazil, China, Costa Rica, Cuba, Dominican Republic, Ecuador, Finland, France, Germany, Guatemala, Guinea, Honduras, Hungary, Indonesia, Ireland, Italy, Japan, Kenya, Malaysia, Mexico, Nepal, Netherlands, Nigeria, Paraguay, Peru, Republic of Korea, Romania, Russian Federation, South Africa, Sri Lanka, Sudan, Swaziland, Togo, Ukraine, United Kingdom and Zimbabwe.
Abstentions (8): Burkina Faso, Congo, Egypt, Ethiopia, Gabon, Mauritania, Qatar and Saudi Arabia.
And on operative paragraph 8, the Commission rejected the amendments by a roll-call vote of 1 in favour to 41 against, with 11 abstentions.
The result of the vote was as follows:
In favour (1): United States
Against (41): Argentina, Armenia, Bhutan, Brazil, China, Costa Rica, Cuba, Dominican Republic, Ecuador, Eritrea, Finland, France, Germany, Guatemala, Guinea, Honduras, Hungary, India, Indonesia, Ireland, Italy, Japan, Kenya, Malaysia, Mexico, Nepal, Netherlands, Nigeria, Paraguay, Peru, Republic of Korea, Romania, Russian Federation, South Africa, Sri Lanka, Sudan, Swaziland, Togo, Ukraine, United Kingdom and Zimbabwe.
Abstentions (11): Australia, Burkina Faso, Canada, Congo, Egypt, Ethiopia, Gabon, Mauritania, Pakistan, Qatar and Saudi Arabia.
T. MICHAEL PEAY (United States), in a general comment, said the United States was compelled to offer three necessary amendments. For one, the word "ordinary" had been used to describe courts or tribunals, whereas this term could be misread to imply military courts, for example. Moreover, the wording "legal procedures" should be deleted as being superfluous. The wording "where required by applicable law", should also be added to operative paragraph eight. The United States requested separate recorded votes on operative paragraphs three, seven and eight.
GRIGORY LUKIYANTSEV (Russian Federation), in a general comment, said it could not accept the amendments proposed by the United States. These amendments contradicted the essence of the draft resolution, and for that reason could not be accepted. Operative paragraph three, which the United States had proposed for amendment, was a quote of paragraph five of the Fundamental Principles on the Independence of the Judiciary. Selective quoting of this paragraph as proposed by the United States could not be accepted, and it was not thought that any of the delegates who had accepted these Fundamental Principles would accept selective quoting either. The Russian Federation would vote against the proposed amendments and urged all other co-sponsors to do so as well.
RODOLFO REYES RODRIGUEZ (Cuba) said the delegation of Cuba considered the draft resolution submitted by Russian Federation and Belarus to be an excellent one and Cuba would be a co-sponsor. The Guantanamo detention of individuals by the United States was illegal in all aspects of international law. The United States amendments were designed to legitimize that detention.
In a resolution (E/CN.4/2005/L.44) on hostage taking, adopted without a vote, the Commission reaffirmed that hostage-taking, wherever and by whomever committed, was a serious crime aimed at the destruction of human rights and was, under any circumstances, unjustifiable, including when committed under the pretext of achieving the goal of promoting and protecting human rights; condemned all acts of hostage-taking anywhere in the world; and demanded that all hostages be released immediately and without any preconditions, and expressed its solidarity with the victims of hostage-taking. The Commission called upon States to take all necessary measures, in accordance with relevant provisions of international law, international humanitarian law and international human rights standards, to prevent, combat and punish acts of hostage-taking, including by strengthening international cooperation in this field; and urged all thematic special procedures to continue to address, as appropriate, the consequences of hostage-taking in their forthcoming reports to the Commission.
T. MICHAEL PEAY (United States), in a general comment, said the United States wanted to underscore that it was aware that some individuals believed that when their own human rights had been violated, they felt justified to resort to hostage taking. Such rationale should always be rejected. In conformity with the international commitments they adhered to, States had the duty to punish all human rights violations, including hostage taking, in application of international human rights law. Acts of hostage taking should all be condemned. These principles shaped the position of the United States on hostage taking. The United States therefore was pleased to join the consensus on the resolution being considered.
In a resolution (E/CN.4/2005/L.45) on democracy and the rule of law, adopted by a roll-call vote of 46 in favour and none against, with 7 abstentions, The Commission, while stressing that countries emerging from conflict may have special needs in addressing legacies of human rights violations and in moving towards democratic governance and the rule of law, called upon States to make continuous efforts to strengthen the rule of law and promote democracy upholding the separation of powers by taking appropriate legislative, judicial and other institutional measures, among other things. It also called upon States to guarantee that no individual or public institution was above the law, by ensuring that the principles of equal protection before the courts and under the law were respected within their legal systems; and by ensuring that impunity was not tolerated for violations of human rights and international humanitarian law, and that such violations were investigated and appropriately sanctioned.
The Commission also called upon States to respect equal protection under the law, by ensuring the right to liberty and security of persons without discrimination and access to information regarding their rights and equal access to justice, including through non-judicial measures; by guaranteeing the right to a fair trial and to a due process of law without discrimination, including the right to be presumed innocent until proven guilty in a court of law; and by ensuring the appropriate remedies and sanctions for violations of human rights. Moreover, the Commission urged the High Commissioner for Human Rights to further develop, in close cooperation with the relevant United Nations funds and programmes, its technical assistance programmes in the area of administration of justice to include more training for members of the executive, legislative and judicial branches on international human rights standards and jurisprudence, in particular on the legal and procedural aspects related to the separation of powers and to the equality under the law.
The result of the vote was as follows:
In favour (46): Argentina, Armenia, Australia, Brazil, Burkina Faso, Canada, Congo, Costa Rica, Dominican Republic, Ecuador, Egypt, Ethiopia, Finland, France, Germany, Guatemala, Guinea, Honduras, Hungary, India, Indonesia, Ireland, Italy, Japan, Kenya, Malaysia, Mauritania, Mexico, Nepal, Netherlands, Nigeria, Pakistan, Paraguay, Peru, Qatar, Republic of Korea, Romania, Russian Federation, South Africa, Sri Lanka, Swaziland, Togo, Ukraine, United Kingdom, United States and Zimbabwe.
Against (0)
Abstentions (7) Bhutan, China, Cuba, Eritrea, Gabon, Saudi Arabia and Sudan.
Before the Commission took action on the resolution, it voted on an amendment proposed by Cuba, rejecting it by a vote of 5 in favour to 36 against, with 11 abstentions.
The result of the vote was as follows:
In favour (5): China, Cuba, Eritrea, Togo and Zimbabwe.
Against (36): Argentina, Armenia, Australia, Brazil, Canada, Costa Rica, Dominican Republic, Finland, France, Germany, Guatemala, Guinea, Honduras, Hungary, India, Indonesia, Ireland, Italy, Japan, Kenya, Malaysia, Mauritania, Mexico, Nepal, Netherlands, Nigeria, Paraguay, Peru, Qatar, Republic of Korea, Romania, South Africa, Sri Lanka, Ukraine, United Kingdom and United States.
Abstentions (11): Bhutan, Burkina Faso, Congo, Egypt, Ethiopia, Gabon, Pakistan, Russian Federation, Saudi Arabia, Sudan and Swaziland.
Absent (1): Ecuador
RODOLFO REYES RODRIGUEZ (Cuba), in a general comment, suggested an amendment to paragraph 13 of the amendment of draft resolution L.45. His amendment was to delete the reference to the conference of the Community of Democracies. It was a process created by the United States to expand its hegemonic desires. The process of the conference of the Community of Democracies was headed by the United States.
DORU COSTEA (Romania), in a general comment, said the comments received on the proposal could have focused on the proposal that the participants in the conference of the Community of Democracies mentioned exceeded some 100 countries. The process mentioned in paragraph 13 was part of a much wider trend to democracy, as two other processes were mentioned in the same paragraph. During the debate, participants in the consultations saw that the process that embraced these three processes was coherent and reinforcing. Consequently, in the logic of the resolution, the text as it was would be supported without any deletion.
SHA ZUKANG (China), in an explanation of the vote before the vote, said democracy and the rule of law were common aspirations and served as guidance for the Chinese Government. The resolution objected to this reality and ignored the great importance of democratization as well as the promotion and protection of human rights. Moreover, the resolution was incompatible with the spirit of democracy. The delegation of China would therefore abstain, although it would support the amendment put forth by the delegation of Cuba.
RODOLFO REYES RODRIGUEZ (Cuba), in an explanation of the vote before the vote, said that there existed no unique concept of democracy in the world. Each country should choose the institutions and the modalities for its democracy. That was why some countries attempted to impose their own concept of democracy on others. He called for recorded vote and his delegation would abstain.
AMARE TEKLE (Eritrea), in an explanation of the vote before the vote, said Eritrea would abstain on this resolution as it was being requested to vote on a resolution that contained a paragraph, number 13, which referred to conferences that Eritrea had not attended, and documents which had not been read, and therefore Eritrea could not be expected to vote.
In a resolution (E/CN.4/2005/L.46) on the independence and impartiality of the judiciary, jurors and assessors and the independence of lawyers, adopted without a vote, the Commission called upon all Governments to respect and uphold the independence of judges and lawyers and, to that end, to take effective legislative, law enforcement and other appropriate measures that would enable them to carry out their professional duties without harassment or intimidation of any kind. The Commission also encouraged Governments that faced difficulties in guaranteeing the independence of judges and lawyers, or that were determined to take measures to implement these principles further, to consult and to consider the services of the Special Rapporteur on the independence of judges and lawyers, for instance by inviting him to their country if the Government concerned deemed it necessary. It also requested the Special Rapporteur to submit a report on the activities related to his mandate at its sixty-second session.
In a resolution (E/CN.4/2005/L.47/Rev.1) on extrajudicial, summary or arbitrary executions, as orally amended, adopted by a roll-call vote of 36 in favour to none against, with 17 abstentions, the Commission strongly condemned once again all extrajudicial, summary or arbitrary executions that continued to take place throughout the world; noted with deep concern that in certain circumstances, cases of extrajudicial, summary or arbitrary executions may result in mass murder, ethnic cleansing or genocide; demanded that all States ensured that the practice of extrajudicial, summary or arbitrary executions was brought to an end and that they take effective action to combat and eliminate the phenomenon in all its forms; and reiterated the obligation of all States to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions, and to identify and bring to justice those responsible. The Commission also called upon all States in which the death penalty had not been abolished to comply with their obligations under relevant provisions of international human rights instruments.
The Commission urged all States to take all necessary and possible measures, in conformity with international human rights law and international humanitarian law, to prevent loss of life, in particular that of children, during internal and communal violence, civil unrest, public demonstrations, public emergency and armed conflicts, and to ensure, through education, training and other measures, that police, law enforcement officials, armed forces and other Government officials acted with restraint and in conformity with international human rights law and international humanitarian law, and to include a gender perspective in such measures. It also noted with deep concern that impunity continued to be a major cause of the perpetuation of violations of human rights, including extrajudicial, summary or arbitrary executions. The Commission appealed to all States to ensure that all persons deprived on their liberty were treated with humanity and with respect for their inherent dignity of the human person. While commending the important role the Special Rapporteur had played towards the elimination of extrajudicial, summary or arbitrary executions, the Commission strongly urged all States to cooperate with and assist the Special Rapporteur so that his mandate may be carried out effectively, and to respond to the communications transmitted to them by the Special Rapporteur.
The result of the vote was as follows:
In favour (36): Argentina, Armenia, Australia, Bhutan, Brazil, Canada, Congo, Costa Rica, Cuba, Dominican Republic, Ecuador,
Eritrea, Finland, France, Germany, Guatemala, Honduras, Hungary, Ireland, Italy, Japan, Kenya, Mexico, Netherlands, Nigeria, Paraguay, Peru, Republic of Korea, Romania, Russian Federation, South Africa, Sri Lanka, Swaziland, Ukraine, United Kingdom and Zimbabwe.
Against (0)
Abstentions (17): Burkina Faso, China, Egypt, Ethiopia, Gabon, Guinea, India, Indonesia, Malaysia, Mauritania, Nepal, Pakistan, Qatar, Saudi Arabia, Sudan, Togo and United States.
Before taking action on the resolution, the Commission reject the amendment to operative paragraph five, proposed by Pakistan, by a recorded vote of 20 in favour to 25 against, with seven abstentions.
The result of the vote was as follows:
In favour (20): China, Congo, Egypt, Eritrea, Ethiopia, Gabon, Guinea, India, Indonesia, Kenya, Malaysia, Mauritania, Nepal, Nigeria, Pakistan, Qatar, Saudi Arabia, Sudan, Togo and United States.
Against (25): Argentina, Armenia, Australia, Brazil, Canada, Costa Rica, Dominican Republic, Ecuador, Finland, France, Germany, Guatemala, Hungary, Ireland, Italy, Japan, Mexico, Netherlands, Paraguay, Peru, Republic of Korea, Romania, Swaziland, Ukraine and United Kingdom.
Abstentions (7): Bhutan, Burkina Faso, Honduras, Russian Federation, South Africa, Sri Lanka and Zimbabwe.
Absent (1): Cuba
The Commission also rejected the amendment to operative paragraph nine, proposed by the United States, by a recorded vote of nine in favour to 35 against, with eight abstentions.
The result of the vote was as follows:
In favour (9): China, Dominican Republic, Eritrea, Ethiopia, India, Indonesia, Mauritania, Pakistan and United States.
Against (35): Argentina, Armenia, Australia, Brazil, Canada, Congo, Costa Rica, Ecuador, Egypt, Finland, France, Gabon, Germany, Guatemala, Guinea, Honduras, Hungary, Ireland, Italy, Kenya, Malaysia, Mexico, Nepal, Netherlands, Nigeria, Paraguay, Peru, Republic of Korea, Romania, Russian Federation, South Africa, Swaziland, Ukraine, United Kingdom and Zimbabwe.
Abstentions (8): Bhutan, Burkina Faso, Japan, Qatar, Saudi Arabia, Sri Lanka, Sudan and Togo.
Absent (1): Cuba
IAN DE JONG (Netherlands), in an explanation of the vote before the vote on behalf of the European Union, said the European Union supported the resolution as originally tabled. The Union fully concurred with the arguments put forth by Sweden as the main sponsor who had worked hard to achieve a balanced and substantial text. The European Union supported the resolution which upheld the right to life and condemned all forms of extrajudicial summary executions. It was important for the Commission to reflect accurately all the situations in the world with regard to the issue under discussion. The European Union underlined the crucial role that States had in condemning these forms of human rights violations and called on all States to cooperate with the Special Rapporteur. All such violations should be brought before the Commission and the international community at large. The Rome Statute also had an important role to play to fight impunity when countries were unwilling or unable to bring the perpetrators of these violations to justice. The Union called on all States to support the resolution as originally tabled.
TEHMINA JANJUA (Pakistan, in a general comment, speaking on behalf of the Member States of the Organization of Islamic Conference - OIC), said every person had the right to life and security, and States had the obligation to take all necessary measures to protect that basic right of all citizens without discrimination. When the right of life of a person was violated through involvement of law enforcement authorities, it constituted extrajudicial execution. The OIC countries fully supported the need for effective measures by States to fulfil their obligations to eliminate extrajudicial killings under their jurisdiction. The co-sponsors over the past three years had included a list, which was contentious, was not exclusive and was non-exhaustive. They continued to expand that list based on their own selective interpretation and without developing consensus. OIC countries, therefore disagreed with the listing in operative paragraph five of the draft. Operative paragraph five should call upon States to investigate promptly and thoroughly all killings, without mentioning any list or categorizations of victims.
SATU MATTILA (Finland), making a general comment, said she wished to express the draft sponsors’ support for operative paragraph five as it stood. That paragraph provided for the inherent right to life of all persons under a State’s jurisdiction, which extended to those groups at particular risk of being killed. Many members of these groups experienced discrimination in their daily lives. That their killings went unreported, or underreported, only encouraged that discrimination. It was incumbent for the Commission to highlight that there could be no derogation from the right to life. This was the aim of operative paragraph five. It did not call for a higher standard of protection for these groups, but only demanded that they experience an equal standard. To have any real meaning, the list included in the paragraph must be explicit in indicating the person or persons that were particularly vulnerable to such killings, and the groups included in the past had included those based on race, minority status, migrant status, and sexual orientation, as well as all other cases in which a person’s right to life had been violated. The sponsors would have felt it necessary to include gender identity on the list at this point, especially as the Special Rapporteur had repeatedly highlighted this issue, and they regretted that it had been impossible to achieve a more comprehensive list that included gender identity. The fact that gender identity was not included should not be seen as giving it lesser importance, but as a reflection of the attempt to reach consensus. The sponsors rejected the amendment proposed by Pakistan
LEONARD LEO (United States), in a general comment, said the United States supported the amendment and supported that the word "including" should be placed in the text. The better course of action was for States to fully comply with the pertinent international instruments such as the Conventions on Civil and Political Rights.
The delegation of the United States suggested the amendment to operative paragraph nine because it opposed positive reference to the International Criminal Court.
HENRI-PAUL NORMANDIN (Canada), in a general statement, said his delegation regretted that the United States was proposing amendments to references to the International Criminal Court in an important human rights resolution. Impunity was identified as one of the main causes for the continued occurrence of extrajudicial, summary or arbitrary executions. Operative paragraph nine recognized the International Criminal Court as an important contribution to ending impunity. He urged all States to vote in favour of operative paragraph nine.
TEHMINA JANJUA (Pakistan) took the floor to request that two separate votes on the amendments proposed by Pakistan and the United States. There should be a separate vote on Pakistan’s proposal to delete the specific listing of groups. All who held that this listing was incomplete should vote in favour of Pakistan’s amendment.
LEONARD LEO (United States), speaking in an explanation of the vote before the vote, said the United States abhorred and condemned any form of extrajudicial summary and arbitrary executions. The United States Constitution contained provisions rejecting such practices. The United States Criminal Justice system directed all such cases to the appropriate courts to be pursued legally in a non discriminatory manner. There were several problems with the text that the United States could not ignore. The United States underscored that the standard rules for the treatment of prisoners, as stated in the resolution, were not legally binding. The resolution also failed to address directly international attacks against civilians in armed conflict situations. The United States would abstain from the vote.
In a resolution (E/CN.4/2005/L.48) on the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by a roll-call vote of 40 in favour to none against, with 13 abstentions, the Commission adopted the Basic Principles and recommended that States take them into account, promote them and bring them to the attention of members of the executive bodies of Government, in particular law enforcement officials and military and security forces, legislative bodies, the judiciary, victims and their representatives, human rights defenders and lawyers, the media and the public in general.
The Basic Principles call on States to respect, ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law emanated from: treaties to which a State was a party; customary international law; and the domestic law of each State. As per the Principles, States were also obligated to respect, ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law, including, among other things, the duty to: take appropriate legislative and administrative and other appropriate measures to prevent violations; investigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law; provide those who claim to be victims of a human rights or humanitarian law violation with equal and effective access to justice, as described below, irrespective of who may ultimately be the bearer of responsibility for the violation; and provide effective remedies to victims, including reparation, as described below.
In cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States had the duty to investigate and, if there was sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him. As regards to the treatment of victims, the Principles stated that victims should be treated with humanity and respect for their dignity and human rights, and appropriate measures should be taken to ensure their safety, physical and psychological well being and privacy, as well as those of their families. Moreover, remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim's right to the following as provided for under international law: equal and effective access to justice; adequate, effective and prompt reparation for harm suffered; and access to relevant information concerning violations and reparation mechanisms. A victim of a gross violation of international human rights law or of a serious violation of international humanitarian law should have equal access to an effective judicial remedy as provided for under international law, the Basic Principles declare.
The Basic Principles also call on States to endeavour to establish national programmes for reparation and other assistance to victims in the event that the party liable for the harm suffered was unable or unwilling to meet their obligations. Moreover, compensation should be provided for any economically, assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from the gross violations of international human rights law and serious violations of international humanitarian law.
The result of the vote was as follows:
In favour (40): Argentina, Armenia, Bhutan, Brazil, Burkina Faso, Canada, China, Congo, Costa Rica, Cuba, Dominican Republic, Ecuador, Finland, France, Gabon, Guatemala, Guinea, Honduras, Hungary, Indonesia, Ireland, Italy, Japan, Kenya, Malaysia, Mexico, Netherlands, Nigeria, Pakistan, Paraguay, Peru, Republic of Korea, Romania, Russian Federation, South Africa, Sri Lanka, Swaziland, Ukraine, United Kingdom and Zimbabwe.
Against (0)
Abstentions (13): Australia, Egypt, Eritrea, Ethiopia, Germany, India, Mauritania, Nepal, Qatar, Saudi Arabia, Sudan, Togo and United States.
LUIS ALFONSO DE ALBA GONGORA (Mexico, making as general statement on behalf of the Group of Latin American and Caribbean Countries - GRULAC), said the resolution introduced by Chile on the principles and guidelines on remedies and reparations for victims outlined the important guidelines. The resolution would remind all States of their obligations to seek remedy and to compensate victims of human rights violations. The resolution would not create a new legal obligation in that field. The group would ask for a vote.
NICK THORNE (United Kingdom), making a general comment, said the United Kingdom had been pleased to cosponsor the draft resolution. These Basic Principles and Guidelines were the result of more than 15 years of work by independent experts, during which time three meetings had been held for input from States, international organizations and non-governmental organizations. The Chairperson-Rapporteur had made it clear that the revised guidelines and principles did not introduce new principles of international law. They were not legally-binding, and did not create any new obligations under international law. Nevertheless, they would be helpful for States to develop new remedies for compensation in this field.
PAULA BARTON (United States), in a general comment, said the Basic Principles and Guidelines were important and merited the support of the United States, although the United States underscored that the principles carried no legal obligations and did not require States to implement international law obligations. The United States regretted that due to the reference to the International Criminal Court in the resolution it would abstain in its vote.
SERGIO CERDA (Argentina), in a general comment, said Argentina endorsed the statement made by Mexico on behalf of GRULAC. He said he regretted that it was not possible to adopt the draft by consensus. The fact that it made reference to the Rome Statute should not prompt the United States to request a vote. The draft should have been adopted by consensus.
HENRI-PAUL NORMANDIN (Canada), speaking in an explanation of the vote before the vote, said Canada welcomed the draft and supported the Commission's adoption of the Basic Principles and Guidelines, and would vote in favour of the draft. The Basic Principles and Guidelines had incorporated a victim-oriented perspective. And, as set out in preambular paragraph seven, they did not create new international or domestic legal obligations, but would help States in regard of modalities and measures in existing international human rights law and international humanitarian law. During the negotiations, it had also been made clear that there was no right to remedy for historical acts that were not violations of international law at the time they occurred.
DEBABRATA SAHA (India), in an explanation of the vote before the vote, said the courts and the human rights commission in India had time and again awarded compensation to victims of human rights violations in line with the jurisprudence of the State. At this juncture, India could not take any position on this matter and would therefore abstain in its vote.
In a resolution (E/CN.4/2005/L.49) on the incompatibility between democracy and racism, adopted without a vote, the Commission condemned political platforms and organizations based on racism, xenophobia or doctrines of racial superiority and related discrimination, as well as legislation and practices based on racism, xenophobia and related intolerance, as incompatible with democracy and transparent and accountable governance; and strongly condemned the persistence and resurgence of neo-Nazism, neo-fascism and violent nationalist ideologies based on racial or national prejudice, and stated that these phenomena could never be justified in any instance or in any circumstances. The Commission recognized with deep concern the increase in anti-Semitism, and Christianophobia and Islamophobia in various parts of the world, as well as the emergence of racial and violent movements based on racism and discriminatory ideas against Arab, Christian, Jewish and Muslim communities, as well as communities of people of African descent and communities of people of Asian descent, and other communities.
The Commission urged States to reinforce their commitment to promote tolerance and human rights and to fight against racism, racial discrimination, xenophobia and related intolerance as a way to strengthen democracy, the rule of law and transparent and accountable governance, and in that regard recommended measures such as introducing or reinforcing human rights education in schools and in institutions of higher education; it also urged States to ensure that their political and legal systems reflect the multicultural diversity within their societies through promoting diversity, to improving democratic institutions, making them more fully participatory and inclusive and avoiding marginalization and exclusion of, and discrimination against, specific sectors of society. Lastly, the Commission invited the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance to review and further expand the study on the question of political platforms which promote or incite racial discrimination.
AMARE TEKLE (Eritrea), in a general statement, said the delegation of Eritrea fully endorsed resolution L.43. He wished to suggest that references to ethnicity and ethnic discrimination, as it appeared in operative paragraph six, be reflected in all other paragraphs.
General Debate on the Rationalization of the Work of the Commission
DARU COSTEA (Romania) said the special procedures were the most genuine and dynamic product of the Commission. They were called to play a pivotal role in the United Nations human rights system. Their special nature derived from many sources, and in particular from the authority entrusted to them by the Commission, their level of expertise, the assurance of impartiality and independence, and their veracity in establishing direct contact with both governmental authorities and representatives of the civil society, among other things. A shortcoming of the interactive dialogue was fragmented: the presentations by the special procedures were scattered and the audience was deprived of a general and comprehensive perspective. Moreover, the time allocated to the dialogue was reduced to insufficient slots that were actually disproportionate with the substance of the special procedures presentations and to the amount of energy and resources invested in them.
An improved perception about the ambit of the work of the Commission might also result, given the obvious diversity of countries and topics that would be discussed. The special segment might turn into an useful reform tool as it would allow Member States to appraise better the specific aspects that were susceptible to be improved in terms of streamlining, merging or better defining mandates of various procedures, thus indicating new directions for the reform of the Commission's working methods.
JULIE DE RIVERO, of International Service for Human Rights, said over the years the Commission had developed its role as a monitoring and protection body for human rights. This role was chosen by States themselves, and for more than three decades they had been consistent in creating an array of special procedures to monitor, report on and react to thematic and country-specific human rights concerns around the world, and in this the Commission recognised the need to protect their functions from its own politicisation. The comments of the High-Level Panel about the Commission's lack of credibility and professionalism were not made in reference to the performance of the special procedures but in response to the behaviour of the Member States who willingly undermined the protection and monitoring function of the Commission. The special procedures should be protected, and all States should work harder to develop strategies to reinforce these procedures, particularly as reform discussions evolved.
GARETH SWEENEY, of South Asia Human Rights Documentation Centre, said all were aware of the shortcomings of the Commission in terms of its work on human rights. Pertinent questions of reform rated serious consideration, and the Commission's positive aspects should be consolidated and carried forward, including through strengthening of the special procedures and continued participation of non-governmental organizations in the general debate. Noting that the issue of moving to New York had been raised, he stressed that non-governmental contributions would surely be one positive aspect of the Commission lost in a move to New York, given its historical treatment of non-governmental organizations. It was also regretted that the Secretary-General had not formulated these proposals for reform much earlier in his term of office, instead of rushing through them at this time. All concepts should be discussed, instead of fast-tracking one choice that would become irreversible.
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For use of information only; not an official record
MIDDAY
19 April 2005
Adopts Basic Principles and Guidelines on the Right to Remedy
for Victims of Gross Violations of Human Rights Law
and Humanitarian Law
The Commission on Human Rights at a midday meeting adopted 11 resolutions on civil and political rights, including on enforced and involuntary disappearances, arbitrary detention, strengthening essential foundations of democracy, the integrity of the judicial system, democracy and the rule of law, and extrajudiciary or arbitrary executions.
The Commission also approved a resolution on the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by a roll-call vote of 40 in favour to none against, with 13 abstentions, in which it adopted the Basic Principles and recommended that States take them into account and promote them. In cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States had the duty to investigate and, if there was sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him. As regards to the treatment of victims, the Principles stated that victims should be treated with humanity and respect for their dignity and human rights, and appropriate measures should be taken to ensure their safety, physical and psychological well being and privacy, as well as those of their families.
Moreover, remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim's right to the following as provided for under international law: equal and effective access to justice; adequate, effective and prompt reparation for harm suffered; and access to relevant information concerning violations and reparation mechanisms. A victim of a gross violation of international human rights law or of a serious violation of international humanitarian law should have equal access to an effective judicial remedy as provided for under international law, the Basic Principles declare. Compensation should be provided for any economically, assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from the gross violations of international human rights law and serious violations of international humanitarian law.
Mexico (on behalf of the Group of Latin American and Caribbean Countries), the United Kingdom, the United States, Argentina, Canada and India commented on this resolution.
In the resolution on enforced or involuntary disappearances, adopted without a vote, the Commission urged States to prevent the occurrence of enforced disappearances, including by guaranteeing that any person deprived of liberty was held solely in officially recognized and supervised places of detention, guaranteeing access to all places of detention by authorities and institutions. It also urged States to work to eradicate the culture of impunity for the perpetrators of enforced disappearances and to elucidate cases of enforced disappearances as crucial steps in effective prevention.
The Russian Federation commented on this resolution.
Concerning the resolution on arbitrary detention, adopted without a vote, the Commission encouraged States to respect and promote the right of anyone who was deprived of his/her liberty by arrest or detention to be entitled to bring proceedings before a court, in order that the court may decide without delay on the lawfulness of his/her detention and order his/her release if the detention was not lawful, in accordance with their international obligations. It urged concerned States not to extend states of emergency beyond what was strictly required by the situation.
With regards to the resolution on the strengthening of popular participation, equity, social justice and non-discrimination as essential foundations of democracy, adopted by a roll-call vote of 28 in favour to 14 against, with 11 abstentions, the Commission reaffirmed that free and fair elections, popular participation and control, collective deliberation and political equality were essential to democracy and must be realized through a framework of accessible, representative and accountable institutions subject to periodic change or renewal.
The Netherlands, speaking on behalf of the European Union and Romania, commented on this resolution.
In the resolution on the integrity of the judicial system, adopted as amended and by a roll-call vote of 52 in favour and none against, with 1 abstention, the Commission called upon States to ensure that the principles of equality before the courts and before the law were respected within their judicial systems, and reaffirmed that every convicted person should have the right to have his/her conviction and sentence reviewed by a higher tribunal according to the law.
The United States, the Russian Federation and Cuba commented on this resolution.
In the resolution on democracy and the rule of law, adopted by a roll-call vote of 46 in favour and none against, with 7 abstentions, the Commission, called upon States to make continuous efforts to strengthen the rule of law and promote democracy by upholding the separation of powers and by taking appropriate legislative, judicial and other institutional measures, among other things.
Cuba, Romania, China and Eritrea commented on this resolution.
And in a resolution on extrajudicial, summary or arbitrary executions, as orally amended, adopted by a roll-call vote of 36 in favour to none against, with 17 abstentions, the Commission strongly condemned once again all extrajudicial, summary or arbitrary executions that continued to take place throughout the world and noted with deep concern that in certain circumstances, cases of extrajudicial, summary or arbitrary executions may result in mass murder, ethnic cleansing or genocide.
The Netherlands (on behalf of the European Union), Pakistan (on behalf of the Organization of the Islamic Conference), Finland, the United States, and Pakistan commented on this resolution.
The Commission also adopted resolutions on human rights and forensic science, hostage taking, the independence and impartiality of the judiciary, jurors and assessors and the independence of lawyers, and the incompatibility between democracy and racism.
The United States, Eritrea and Brazil commented on those resolutions.
When the Commission started taking action on draft resolutions, the Chairperson postponed to a later date two draft resolutions on the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance and the comprehensive implementation of and follow-up to the Durban Declaration and Programme of Action (E/CN.4/2005/L.13), and on the situation of human rights in the Sudan (E/CN.4/2005/L.33/Rev.1) to a later date because they had been presented too late and were not yet available in all the official languages of the United Nations.
At the beginning of the meeting, the Committee held a general debate on the rationalization of the work of the Commission. Romania spoke under this agenda item, as did the non-governmental organizations International Human Rights Service and South Asia Human Rights Documentation Centre.
The Commission today is holding three back-to-back meetings. When it concluded its midday meeting at 3 p.m., the Commission immediately started its afternoon meeting which will last until 6 p.m. and during which it will continue to take action on draft resolutions on civil and political rights, the integration of the human rights of women and the gender perspective, and the rights of the child.
Action on Resolutions on Civil and Political Rights
In a resolution (E/CN.4/2005/L.39) on human rights and forensic science, which was adopted without a vote, the Commission recommended that the Office of the High Commissioner encourage forensic experts to coordinate further and promote the consolidation of relevant guidelines, with a view to harmonizing the procedures in forensic investigation and repatriation; also recommended that the Office of the High Commissioner encourage, as appropriate, the dissemination and use of the principles, best practices and manuals referred to in the present resolution and the promotion of forensic capacity-building, including training where necessary, particularly in countries without sufficient expertise in forensic science and related fields, for example through the training of local teams; and further recommended that the High Commissioner, with a view to promoting quality and consistency of forensic practice, facilitate the development and implementation of a common framework of operations based on existing standards and principles.
The Commission also requested the Secretary-General to provide appropriate resources, from within existing overall United Nations resources, to fund the activities of the Office of the High Commissioner in implementing the present resolution, including a revision of the Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.
In a resolution (E/CN.4/2005/L.40) on enforced or involuntary disappearances, adopted without a vote, the Commission stressed the importance of the work of the Working Group on enforced or involuntary disappearances, and encouraged it to pursue the execution of its mandate to continue to promote communication between families of disappeared persons and the Governments concerned, particularly when ordinary channels have failed, and to continue to consider the question of impunity in the light of the relevant provisions of the Declaration on the Protection of All Persons from Enforced Disappearance and of the final reports submitted by the Special Rapporteur appointed by the Sub-Commission on the Promotion and Protection of Human Rights. The Commission deplored the fact that some Governments had not provided for a long period of time substantive replies concerning claims of enforced disappearances in their countries and had not given due consideration to relevant recommendations concerning this subject made in the reports of the Working Group.
The Commission urged States to prevent the occurrence of enforced disappearances, including by guaranteeing that any person deprived of liberty was held solely in officially recognized and supervised places of detention, guaranteeing access to all places of detention by authorities and institutions whose competence in this regard had been recognized by the concerned State, maintaining official, accessible, up-to-date registers and/or records of detainees and ensuring that detainees were brought before a judicial authority promptly after detention. It also urged States to work to eradicate the culture of impunity for the perpetrators of enforced disappearances and to elucidate cases of enforced disappearances as crucial steps in effective prevention. Lastly, the Commission urged Governments to make provision in their legal systems for victims of enforced or involuntary disappearances or their families to seek fair, prompt and adequate reparation and in addition, where appropriate, to consider symbolic measures recognizing the suffering of victims and restoring their dignity and reputation.
ALEXEY VLASOV (Russian Federation), in a general comment, said the Russian Federation attached great importance to the resolution, which was an important contribution to the protection and promotion of human rights. The Government of the Russian Federation was also in favour of strengthening any legally-binding document on the subject of forced disappearances. However, the Russian Federation had some reservations with regard to the inter-sessional Working Group and felt that any consultations on the drafting of an international instrument should continue until consensus had been achieved on the most contentious issues on the draft.
In a resolution (E/CN.4/2005/L.41) on arbitrary detention, adopted without a vote, the Commission requested the States concerned to take account of the Working Group's views and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily deprived of their liberty and to inform the Working Group of the steps they had taken. The Commission also encouraged States to respect and promote the right of anyone who was deprived of his/her liberty by arrest or detention to be entitled to bring proceedings before a court, in order that the court may decide without delay on the lawfulness of his/her detention and order his/her release if the detention was not lawful, in accordance with their international obligations; and to concerned States not to extend states of emergency beyond what was strictly required by the situation, in accordance with the provisions of article 4 of the International Covenant on Civil and Political Rights, or to limit their effect. The Commission also noted with concern that a growing proportion of urgent appeals of the Working Group had been left unanswered and urged the States concerned to give the necessary attention to the urgent appeals addressed to them by the Working Group on a strictly humanitarian basis and without prejudging its possible final conclusions.
In a resolution (E/CN.4/2005/L.42) on the strengthening of popular participation, equity, social justice and non-discrimination as essential foundations of democracy, adopted by a roll-call vote of 28 in favour to 14 against, with 11 abstentions, the Commission reaffirmed that democracy was based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives and that in that context the promotion and protection of human rights and fundamental freedoms at the national and international levels should be universal and conducted without conditions attached; and that democracy, development and respect for human rights were independent and mutually reinforcing. The Commission also reaffirmed that free and fair elections, popular participation and control, collective deliberation and political equality were essential to democracy and must be realized through a framework of accessible, representative and accountable institutions subject to periodic change or renewal; and urged all States to take measures to eliminate obstacles and threats to democracy and to ensure that barriers to participation, such as illiteracy, poverty and discrimination, were overcome.
The result of the vote was as follows:
In favour (28): Bhutan, Brazil, Burkina Faso, China, Congo, Cuba, Ecuador, Egypt, Eritrea, Ethiopia, Gabon, Guinea, India, Indonesia, Kenya, Malaysia, Mauritania, Nepal, Nigeria, Pakistan, Qatar, Russian Federation, South Africa, Sri Lanka, Sudan, Swaziland, Togo and Zimbabwe.
Against (14): Australia, Canada, Finland, France, Germany, Hungary, Ireland, Italy, Netherlands, Republic of Korea, Romania, Ukraine, United Kingdom and United States.
Abstentions (11): Argentina, Armenia, Costa Rica, Dominican Republic, Guatemala, Honduras, Japan, Mexico, Paraguay, Peru and Saudi Arabia.
IAN DE JONG (Netherlands on behalf of the European Union and Romania) in an explanation of the vote before the vote, said the European Union and Romania regretted the tabling of this resolution, which lacked a definition of democracy and its practical implications on Government and exercise of power by citizens, and tended to present international cooperation and development as a pre-requisite for democracy. There should be no excuse for Governments not to allow their citizens to exercise their human rights and fundamental freedoms. There should be a vote on the resolution, and the European Union and Romania would vote against it. The European Union had decided to co-sponsor the Romanian draft resolution L.45.
In a resolution (E/CN.4/2005/L.43) on the integrity of the judicial system, adopted as amended and by a roll-call vote of 52 in favour and none against, with 1 abstention, the Commission urged States to guarantee that all persons brought to trial before courts or tribunals under their authority had the right to be tried in their presence, to defend themselves in person or through legal assistance of their own choosing and to have all the guarantees necessary for the defence; called upon States to ensure that the principles of equality before the courts and before the law were respected within their judicial systems, among other things, by providing to those being tried the possibility to examine, or to have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them; and reaffirmed that every convicted person should have the right to have his/her conviction and sentence reviewed by a higher tribunal according to the law. The Commission also called upon States that had military courts or special criminal tribunals for trying criminal offenders to ensure that such courts where required by applicable law were an integral part of the general judicial system and that such courts applied due process procedures that were recognized according to international law as guarantees of a fair trial, including the right to appeal a conviction and a sentence.
The result of the vote was as follows:
In favour (52): Argentina, Armenia, Australia, Bhutan, Brazil, Burkina Faso, Canada, China, Congo, Costa Rica, Cuba, Dominican Republic, Ecuador, Egypt, Eritrea, Ethiopia, Finland, France, Gabon, Germany, Guatemala, Guinea, Honduras, Hungary, India, Indonesia, Ireland, Italy, Japan, Kenya, Malaysia, Mauritania, Mexico, Nepal, Netherlands, Nigeria, Pakistan, Paraguay, Peru, Qatar, Republic of Korea, Romania, Russian Federation, Saudi Arabia, South Africa, Sri Lanka, Sudan, Swaziland, Togo, Ukraine, United Kingdom and Zimbabwe.
Against (0)
Abstention (1): United States
Before action was taken on the resolution, the Commission voted on three proposed amendments by the United States. On the amendment on operative paragraph 3, the Commission rejected the amendments by a roll-call vote of 4 in favour to 40 against, with 9 abstentions.
The result of the vote was as follows:
In favour (4): Australia, Canada, Eritrea and United States.
Against (40): Argentina, Armenia, Bhutan, Brazil, China, Costa Rica, Cuba, Dominican Republic, Ecuador, Finland, France, Germany, Guatemala, Guinea, Honduras, Hungary, India, Indonesia, Ireland, Italy, Japan, Kenya, Malaysia, Mexico, Nepal, Netherlands, Nigeria, Paraguay, Peru, Republic of Korea, Romania, Russian Federation, South Africa, Sri Lanka, Sudan, Swaziland, Togo, Ukraine, United Kingdom and Zimbabwe.
Abstentions (9): Burkina Faso, Congo, Egypt, Ethiopia, Gabon, Mauritania, Pakistan, Qatar and Saudi Arabia.
On operative paragraph 7, the Commission rejected the amendments by a roll-call vote of 6 in favour to 39 against, with 8 abstentions.
The result of the vote was as follows:
In favour (6): Australia, Canada, Eritrea, India, Pakistan and United States.
Against (39): Argentina, Armenia, Bhutan, Brazil, China, Costa Rica, Cuba, Dominican Republic, Ecuador, Finland, France, Germany, Guatemala, Guinea, Honduras, Hungary, Indonesia, Ireland, Italy, Japan, Kenya, Malaysia, Mexico, Nepal, Netherlands, Nigeria, Paraguay, Peru, Republic of Korea, Romania, Russian Federation, South Africa, Sri Lanka, Sudan, Swaziland, Togo, Ukraine, United Kingdom and Zimbabwe.
Abstentions (8): Burkina Faso, Congo, Egypt, Ethiopia, Gabon, Mauritania, Qatar and Saudi Arabia.
And on operative paragraph 8, the Commission rejected the amendments by a roll-call vote of 1 in favour to 41 against, with 11 abstentions.
The result of the vote was as follows:
In favour (1): United States
Against (41): Argentina, Armenia, Bhutan, Brazil, China, Costa Rica, Cuba, Dominican Republic, Ecuador, Eritrea, Finland, France, Germany, Guatemala, Guinea, Honduras, Hungary, India, Indonesia, Ireland, Italy, Japan, Kenya, Malaysia, Mexico, Nepal, Netherlands, Nigeria, Paraguay, Peru, Republic of Korea, Romania, Russian Federation, South Africa, Sri Lanka, Sudan, Swaziland, Togo, Ukraine, United Kingdom and Zimbabwe.
Abstentions (11): Australia, Burkina Faso, Canada, Congo, Egypt, Ethiopia, Gabon, Mauritania, Pakistan, Qatar and Saudi Arabia.
T. MICHAEL PEAY (United States), in a general comment, said the United States was compelled to offer three necessary amendments. For one, the word "ordinary" had been used to describe courts or tribunals, whereas this term could be misread to imply military courts, for example. Moreover, the wording "legal procedures" should be deleted as being superfluous. The wording "where required by applicable law", should also be added to operative paragraph eight. The United States requested separate recorded votes on operative paragraphs three, seven and eight.
GRIGORY LUKIYANTSEV (Russian Federation), in a general comment, said it could not accept the amendments proposed by the United States. These amendments contradicted the essence of the draft resolution, and for that reason could not be accepted. Operative paragraph three, which the United States had proposed for amendment, was a quote of paragraph five of the Fundamental Principles on the Independence of the Judiciary. Selective quoting of this paragraph as proposed by the United States could not be accepted, and it was not thought that any of the delegates who had accepted these Fundamental Principles would accept selective quoting either. The Russian Federation would vote against the proposed amendments and urged all other co-sponsors to do so as well.
RODOLFO REYES RODRIGUEZ (Cuba) said the delegation of Cuba considered the draft resolution submitted by Russian Federation and Belarus to be an excellent one and Cuba would be a co-sponsor. The Guantanamo detention of individuals by the United States was illegal in all aspects of international law. The United States amendments were designed to legitimize that detention.
In a resolution (E/CN.4/2005/L.44) on hostage taking, adopted without a vote, the Commission reaffirmed that hostage-taking, wherever and by whomever committed, was a serious crime aimed at the destruction of human rights and was, under any circumstances, unjustifiable, including when committed under the pretext of achieving the goal of promoting and protecting human rights; condemned all acts of hostage-taking anywhere in the world; and demanded that all hostages be released immediately and without any preconditions, and expressed its solidarity with the victims of hostage-taking. The Commission called upon States to take all necessary measures, in accordance with relevant provisions of international law, international humanitarian law and international human rights standards, to prevent, combat and punish acts of hostage-taking, including by strengthening international cooperation in this field; and urged all thematic special procedures to continue to address, as appropriate, the consequences of hostage-taking in their forthcoming reports to the Commission.
T. MICHAEL PEAY (United States), in a general comment, said the United States wanted to underscore that it was aware that some individuals believed that when their own human rights had been violated, they felt justified to resort to hostage taking. Such rationale should always be rejected. In conformity with the international commitments they adhered to, States had the duty to punish all human rights violations, including hostage taking, in application of international human rights law. Acts of hostage taking should all be condemned. These principles shaped the position of the United States on hostage taking. The United States therefore was pleased to join the consensus on the resolution being considered.
In a resolution (E/CN.4/2005/L.45) on democracy and the rule of law, adopted by a roll-call vote of 46 in favour and none against, with 7 abstentions, The Commission, while stressing that countries emerging from conflict may have special needs in addressing legacies of human rights violations and in moving towards democratic governance and the rule of law, called upon States to make continuous efforts to strengthen the rule of law and promote democracy upholding the separation of powers by taking appropriate legislative, judicial and other institutional measures, among other things. It also called upon States to guarantee that no individual or public institution was above the law, by ensuring that the principles of equal protection before the courts and under the law were respected within their legal systems; and by ensuring that impunity was not tolerated for violations of human rights and international humanitarian law, and that such violations were investigated and appropriately sanctioned.
The Commission also called upon States to respect equal protection under the law, by ensuring the right to liberty and security of persons without discrimination and access to information regarding their rights and equal access to justice, including through non-judicial measures; by guaranteeing the right to a fair trial and to a due process of law without discrimination, including the right to be presumed innocent until proven guilty in a court of law; and by ensuring the appropriate remedies and sanctions for violations of human rights. Moreover, the Commission urged the High Commissioner for Human Rights to further develop, in close cooperation with the relevant United Nations funds and programmes, its technical assistance programmes in the area of administration of justice to include more training for members of the executive, legislative and judicial branches on international human rights standards and jurisprudence, in particular on the legal and procedural aspects related to the separation of powers and to the equality under the law.
The result of the vote was as follows:
In favour (46): Argentina, Armenia, Australia, Brazil, Burkina Faso, Canada, Congo, Costa Rica, Dominican Republic, Ecuador, Egypt, Ethiopia, Finland, France, Germany, Guatemala, Guinea, Honduras, Hungary, India, Indonesia, Ireland, Italy, Japan, Kenya, Malaysia, Mauritania, Mexico, Nepal, Netherlands, Nigeria, Pakistan, Paraguay, Peru, Qatar, Republic of Korea, Romania, Russian Federation, South Africa, Sri Lanka, Swaziland, Togo, Ukraine, United Kingdom, United States and Zimbabwe.
Against (0)
Abstentions (7) Bhutan, China, Cuba, Eritrea, Gabon, Saudi Arabia and Sudan.
Before the Commission took action on the resolution, it voted on an amendment proposed by Cuba, rejecting it by a vote of 5 in favour to 36 against, with 11 abstentions.
The result of the vote was as follows:
In favour (5): China, Cuba, Eritrea, Togo and Zimbabwe.
Against (36): Argentina, Armenia, Australia, Brazil, Canada, Costa Rica, Dominican Republic, Finland, France, Germany, Guatemala, Guinea, Honduras, Hungary, India, Indonesia, Ireland, Italy, Japan, Kenya, Malaysia, Mauritania, Mexico, Nepal, Netherlands, Nigeria, Paraguay, Peru, Qatar, Republic of Korea, Romania, South Africa, Sri Lanka, Ukraine, United Kingdom and United States.
Abstentions (11): Bhutan, Burkina Faso, Congo, Egypt, Ethiopia, Gabon, Pakistan, Russian Federation, Saudi Arabia, Sudan and Swaziland.
Absent (1): Ecuador
RODOLFO REYES RODRIGUEZ (Cuba), in a general comment, suggested an amendment to paragraph 13 of the amendment of draft resolution L.45. His amendment was to delete the reference to the conference of the Community of Democracies. It was a process created by the United States to expand its hegemonic desires. The process of the conference of the Community of Democracies was headed by the United States.
DORU COSTEA (Romania), in a general comment, said the comments received on the proposal could have focused on the proposal that the participants in the conference of the Community of Democracies mentioned exceeded some 100 countries. The process mentioned in paragraph 13 was part of a much wider trend to democracy, as two other processes were mentioned in the same paragraph. During the debate, participants in the consultations saw that the process that embraced these three processes was coherent and reinforcing. Consequently, in the logic of the resolution, the text as it was would be supported without any deletion.
SHA ZUKANG (China), in an explanation of the vote before the vote, said democracy and the rule of law were common aspirations and served as guidance for the Chinese Government. The resolution objected to this reality and ignored the great importance of democratization as well as the promotion and protection of human rights. Moreover, the resolution was incompatible with the spirit of democracy. The delegation of China would therefore abstain, although it would support the amendment put forth by the delegation of Cuba.
RODOLFO REYES RODRIGUEZ (Cuba), in an explanation of the vote before the vote, said that there existed no unique concept of democracy in the world. Each country should choose the institutions and the modalities for its democracy. That was why some countries attempted to impose their own concept of democracy on others. He called for recorded vote and his delegation would abstain.
AMARE TEKLE (Eritrea), in an explanation of the vote before the vote, said Eritrea would abstain on this resolution as it was being requested to vote on a resolution that contained a paragraph, number 13, which referred to conferences that Eritrea had not attended, and documents which had not been read, and therefore Eritrea could not be expected to vote.
In a resolution (E/CN.4/2005/L.46) on the independence and impartiality of the judiciary, jurors and assessors and the independence of lawyers, adopted without a vote, the Commission called upon all Governments to respect and uphold the independence of judges and lawyers and, to that end, to take effective legislative, law enforcement and other appropriate measures that would enable them to carry out their professional duties without harassment or intimidation of any kind. The Commission also encouraged Governments that faced difficulties in guaranteeing the independence of judges and lawyers, or that were determined to take measures to implement these principles further, to consult and to consider the services of the Special Rapporteur on the independence of judges and lawyers, for instance by inviting him to their country if the Government concerned deemed it necessary. It also requested the Special Rapporteur to submit a report on the activities related to his mandate at its sixty-second session.
In a resolution (E/CN.4/2005/L.47/Rev.1) on extrajudicial, summary or arbitrary executions, as orally amended, adopted by a roll-call vote of 36 in favour to none against, with 17 abstentions, the Commission strongly condemned once again all extrajudicial, summary or arbitrary executions that continued to take place throughout the world; noted with deep concern that in certain circumstances, cases of extrajudicial, summary or arbitrary executions may result in mass murder, ethnic cleansing or genocide; demanded that all States ensured that the practice of extrajudicial, summary or arbitrary executions was brought to an end and that they take effective action to combat and eliminate the phenomenon in all its forms; and reiterated the obligation of all States to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions, and to identify and bring to justice those responsible. The Commission also called upon all States in which the death penalty had not been abolished to comply with their obligations under relevant provisions of international human rights instruments.
The Commission urged all States to take all necessary and possible measures, in conformity with international human rights law and international humanitarian law, to prevent loss of life, in particular that of children, during internal and communal violence, civil unrest, public demonstrations, public emergency and armed conflicts, and to ensure, through education, training and other measures, that police, law enforcement officials, armed forces and other Government officials acted with restraint and in conformity with international human rights law and international humanitarian law, and to include a gender perspective in such measures. It also noted with deep concern that impunity continued to be a major cause of the perpetuation of violations of human rights, including extrajudicial, summary or arbitrary executions. The Commission appealed to all States to ensure that all persons deprived on their liberty were treated with humanity and with respect for their inherent dignity of the human person. While commending the important role the Special Rapporteur had played towards the elimination of extrajudicial, summary or arbitrary executions, the Commission strongly urged all States to cooperate with and assist the Special Rapporteur so that his mandate may be carried out effectively, and to respond to the communications transmitted to them by the Special Rapporteur.
The result of the vote was as follows:
In favour (36): Argentina, Armenia, Australia, Bhutan, Brazil, Canada, Congo, Costa Rica, Cuba, Dominican Republic, Ecuador,
Eritrea, Finland, France, Germany, Guatemala, Honduras, Hungary, Ireland, Italy, Japan, Kenya, Mexico, Netherlands, Nigeria, Paraguay, Peru, Republic of Korea, Romania, Russian Federation, South Africa, Sri Lanka, Swaziland, Ukraine, United Kingdom and Zimbabwe.
Against (0)
Abstentions (17): Burkina Faso, China, Egypt, Ethiopia, Gabon, Guinea, India, Indonesia, Malaysia, Mauritania, Nepal, Pakistan, Qatar, Saudi Arabia, Sudan, Togo and United States.
Before taking action on the resolution, the Commission reject the amendment to operative paragraph five, proposed by Pakistan, by a recorded vote of 20 in favour to 25 against, with seven abstentions.
The result of the vote was as follows:
In favour (20): China, Congo, Egypt, Eritrea, Ethiopia, Gabon, Guinea, India, Indonesia, Kenya, Malaysia, Mauritania, Nepal, Nigeria, Pakistan, Qatar, Saudi Arabia, Sudan, Togo and United States.
Against (25): Argentina, Armenia, Australia, Brazil, Canada, Costa Rica, Dominican Republic, Ecuador, Finland, France, Germany, Guatemala, Hungary, Ireland, Italy, Japan, Mexico, Netherlands, Paraguay, Peru, Republic of Korea, Romania, Swaziland, Ukraine and United Kingdom.
Abstentions (7): Bhutan, Burkina Faso, Honduras, Russian Federation, South Africa, Sri Lanka and Zimbabwe.
Absent (1): Cuba
The Commission also rejected the amendment to operative paragraph nine, proposed by the United States, by a recorded vote of nine in favour to 35 against, with eight abstentions.
The result of the vote was as follows:
In favour (9): China, Dominican Republic, Eritrea, Ethiopia, India, Indonesia, Mauritania, Pakistan and United States.
Against (35): Argentina, Armenia, Australia, Brazil, Canada, Congo, Costa Rica, Ecuador, Egypt, Finland, France, Gabon, Germany, Guatemala, Guinea, Honduras, Hungary, Ireland, Italy, Kenya, Malaysia, Mexico, Nepal, Netherlands, Nigeria, Paraguay, Peru, Republic of Korea, Romania, Russian Federation, South Africa, Swaziland, Ukraine, United Kingdom and Zimbabwe.
Abstentions (8): Bhutan, Burkina Faso, Japan, Qatar, Saudi Arabia, Sri Lanka, Sudan and Togo.
Absent (1): Cuba
IAN DE JONG (Netherlands), in an explanation of the vote before the vote on behalf of the European Union, said the European Union supported the resolution as originally tabled. The Union fully concurred with the arguments put forth by Sweden as the main sponsor who had worked hard to achieve a balanced and substantial text. The European Union supported the resolution which upheld the right to life and condemned all forms of extrajudicial summary executions. It was important for the Commission to reflect accurately all the situations in the world with regard to the issue under discussion. The European Union underlined the crucial role that States had in condemning these forms of human rights violations and called on all States to cooperate with the Special Rapporteur. All such violations should be brought before the Commission and the international community at large. The Rome Statute also had an important role to play to fight impunity when countries were unwilling or unable to bring the perpetrators of these violations to justice. The Union called on all States to support the resolution as originally tabled.
TEHMINA JANJUA (Pakistan, in a general comment, speaking on behalf of the Member States of the Organization of Islamic Conference - OIC), said every person had the right to life and security, and States had the obligation to take all necessary measures to protect that basic right of all citizens without discrimination. When the right of life of a person was violated through involvement of law enforcement authorities, it constituted extrajudicial execution. The OIC countries fully supported the need for effective measures by States to fulfil their obligations to eliminate extrajudicial killings under their jurisdiction. The co-sponsors over the past three years had included a list, which was contentious, was not exclusive and was non-exhaustive. They continued to expand that list based on their own selective interpretation and without developing consensus. OIC countries, therefore disagreed with the listing in operative paragraph five of the draft. Operative paragraph five should call upon States to investigate promptly and thoroughly all killings, without mentioning any list or categorizations of victims.
SATU MATTILA (Finland), making a general comment, said she wished to express the draft sponsors’ support for operative paragraph five as it stood. That paragraph provided for the inherent right to life of all persons under a State’s jurisdiction, which extended to those groups at particular risk of being killed. Many members of these groups experienced discrimination in their daily lives. That their killings went unreported, or underreported, only encouraged that discrimination. It was incumbent for the Commission to highlight that there could be no derogation from the right to life. This was the aim of operative paragraph five. It did not call for a higher standard of protection for these groups, but only demanded that they experience an equal standard. To have any real meaning, the list included in the paragraph must be explicit in indicating the person or persons that were particularly vulnerable to such killings, and the groups included in the past had included those based on race, minority status, migrant status, and sexual orientation, as well as all other cases in which a person’s right to life had been violated. The sponsors would have felt it necessary to include gender identity on the list at this point, especially as the Special Rapporteur had repeatedly highlighted this issue, and they regretted that it had been impossible to achieve a more comprehensive list that included gender identity. The fact that gender identity was not included should not be seen as giving it lesser importance, but as a reflection of the attempt to reach consensus. The sponsors rejected the amendment proposed by Pakistan
LEONARD LEO (United States), in a general comment, said the United States supported the amendment and supported that the word "including" should be placed in the text. The better course of action was for States to fully comply with the pertinent international instruments such as the Conventions on Civil and Political Rights.
The delegation of the United States suggested the amendment to operative paragraph nine because it opposed positive reference to the International Criminal Court.
HENRI-PAUL NORMANDIN (Canada), in a general statement, said his delegation regretted that the United States was proposing amendments to references to the International Criminal Court in an important human rights resolution. Impunity was identified as one of the main causes for the continued occurrence of extrajudicial, summary or arbitrary executions. Operative paragraph nine recognized the International Criminal Court as an important contribution to ending impunity. He urged all States to vote in favour of operative paragraph nine.
TEHMINA JANJUA (Pakistan) took the floor to request that two separate votes on the amendments proposed by Pakistan and the United States. There should be a separate vote on Pakistan’s proposal to delete the specific listing of groups. All who held that this listing was incomplete should vote in favour of Pakistan’s amendment.
LEONARD LEO (United States), speaking in an explanation of the vote before the vote, said the United States abhorred and condemned any form of extrajudicial summary and arbitrary executions. The United States Constitution contained provisions rejecting such practices. The United States Criminal Justice system directed all such cases to the appropriate courts to be pursued legally in a non discriminatory manner. There were several problems with the text that the United States could not ignore. The United States underscored that the standard rules for the treatment of prisoners, as stated in the resolution, were not legally binding. The resolution also failed to address directly international attacks against civilians in armed conflict situations. The United States would abstain from the vote.
In a resolution (E/CN.4/2005/L.48) on the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by a roll-call vote of 40 in favour to none against, with 13 abstentions, the Commission adopted the Basic Principles and recommended that States take them into account, promote them and bring them to the attention of members of the executive bodies of Government, in particular law enforcement officials and military and security forces, legislative bodies, the judiciary, victims and their representatives, human rights defenders and lawyers, the media and the public in general.
The Basic Principles call on States to respect, ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law emanated from: treaties to which a State was a party; customary international law; and the domestic law of each State. As per the Principles, States were also obligated to respect, ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law, including, among other things, the duty to: take appropriate legislative and administrative and other appropriate measures to prevent violations; investigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law; provide those who claim to be victims of a human rights or humanitarian law violation with equal and effective access to justice, as described below, irrespective of who may ultimately be the bearer of responsibility for the violation; and provide effective remedies to victims, including reparation, as described below.
In cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States had the duty to investigate and, if there was sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him. As regards to the treatment of victims, the Principles stated that victims should be treated with humanity and respect for their dignity and human rights, and appropriate measures should be taken to ensure their safety, physical and psychological well being and privacy, as well as those of their families. Moreover, remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim's right to the following as provided for under international law: equal and effective access to justice; adequate, effective and prompt reparation for harm suffered; and access to relevant information concerning violations and reparation mechanisms. A victim of a gross violation of international human rights law or of a serious violation of international humanitarian law should have equal access to an effective judicial remedy as provided for under international law, the Basic Principles declare.
The Basic Principles also call on States to endeavour to establish national programmes for reparation and other assistance to victims in the event that the party liable for the harm suffered was unable or unwilling to meet their obligations. Moreover, compensation should be provided for any economically, assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from the gross violations of international human rights law and serious violations of international humanitarian law.
The result of the vote was as follows:
In favour (40): Argentina, Armenia, Bhutan, Brazil, Burkina Faso, Canada, China, Congo, Costa Rica, Cuba, Dominican Republic, Ecuador, Finland, France, Gabon, Guatemala, Guinea, Honduras, Hungary, Indonesia, Ireland, Italy, Japan, Kenya, Malaysia, Mexico, Netherlands, Nigeria, Pakistan, Paraguay, Peru, Republic of Korea, Romania, Russian Federation, South Africa, Sri Lanka, Swaziland, Ukraine, United Kingdom and Zimbabwe.
Against (0)
Abstentions (13): Australia, Egypt, Eritrea, Ethiopia, Germany, India, Mauritania, Nepal, Qatar, Saudi Arabia, Sudan, Togo and United States.
LUIS ALFONSO DE ALBA GONGORA (Mexico, making as general statement on behalf of the Group of Latin American and Caribbean Countries - GRULAC), said the resolution introduced by Chile on the principles and guidelines on remedies and reparations for victims outlined the important guidelines. The resolution would remind all States of their obligations to seek remedy and to compensate victims of human rights violations. The resolution would not create a new legal obligation in that field. The group would ask for a vote.
NICK THORNE (United Kingdom), making a general comment, said the United Kingdom had been pleased to cosponsor the draft resolution. These Basic Principles and Guidelines were the result of more than 15 years of work by independent experts, during which time three meetings had been held for input from States, international organizations and non-governmental organizations. The Chairperson-Rapporteur had made it clear that the revised guidelines and principles did not introduce new principles of international law. They were not legally-binding, and did not create any new obligations under international law. Nevertheless, they would be helpful for States to develop new remedies for compensation in this field.
PAULA BARTON (United States), in a general comment, said the Basic Principles and Guidelines were important and merited the support of the United States, although the United States underscored that the principles carried no legal obligations and did not require States to implement international law obligations. The United States regretted that due to the reference to the International Criminal Court in the resolution it would abstain in its vote.
SERGIO CERDA (Argentina), in a general comment, said Argentina endorsed the statement made by Mexico on behalf of GRULAC. He said he regretted that it was not possible to adopt the draft by consensus. The fact that it made reference to the Rome Statute should not prompt the United States to request a vote. The draft should have been adopted by consensus.
HENRI-PAUL NORMANDIN (Canada), speaking in an explanation of the vote before the vote, said Canada welcomed the draft and supported the Commission's adoption of the Basic Principles and Guidelines, and would vote in favour of the draft. The Basic Principles and Guidelines had incorporated a victim-oriented perspective. And, as set out in preambular paragraph seven, they did not create new international or domestic legal obligations, but would help States in regard of modalities and measures in existing international human rights law and international humanitarian law. During the negotiations, it had also been made clear that there was no right to remedy for historical acts that were not violations of international law at the time they occurred.
DEBABRATA SAHA (India), in an explanation of the vote before the vote, said the courts and the human rights commission in India had time and again awarded compensation to victims of human rights violations in line with the jurisprudence of the State. At this juncture, India could not take any position on this matter and would therefore abstain in its vote.
In a resolution (E/CN.4/2005/L.49) on the incompatibility between democracy and racism, adopted without a vote, the Commission condemned political platforms and organizations based on racism, xenophobia or doctrines of racial superiority and related discrimination, as well as legislation and practices based on racism, xenophobia and related intolerance, as incompatible with democracy and transparent and accountable governance; and strongly condemned the persistence and resurgence of neo-Nazism, neo-fascism and violent nationalist ideologies based on racial or national prejudice, and stated that these phenomena could never be justified in any instance or in any circumstances. The Commission recognized with deep concern the increase in anti-Semitism, and Christianophobia and Islamophobia in various parts of the world, as well as the emergence of racial and violent movements based on racism and discriminatory ideas against Arab, Christian, Jewish and Muslim communities, as well as communities of people of African descent and communities of people of Asian descent, and other communities.
The Commission urged States to reinforce their commitment to promote tolerance and human rights and to fight against racism, racial discrimination, xenophobia and related intolerance as a way to strengthen democracy, the rule of law and transparent and accountable governance, and in that regard recommended measures such as introducing or reinforcing human rights education in schools and in institutions of higher education; it also urged States to ensure that their political and legal systems reflect the multicultural diversity within their societies through promoting diversity, to improving democratic institutions, making them more fully participatory and inclusive and avoiding marginalization and exclusion of, and discrimination against, specific sectors of society. Lastly, the Commission invited the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance to review and further expand the study on the question of political platforms which promote or incite racial discrimination.
AMARE TEKLE (Eritrea), in a general statement, said the delegation of Eritrea fully endorsed resolution L.43. He wished to suggest that references to ethnicity and ethnic discrimination, as it appeared in operative paragraph six, be reflected in all other paragraphs.
General Debate on the Rationalization of the Work of the Commission
DARU COSTEA (Romania) said the special procedures were the most genuine and dynamic product of the Commission. They were called to play a pivotal role in the United Nations human rights system. Their special nature derived from many sources, and in particular from the authority entrusted to them by the Commission, their level of expertise, the assurance of impartiality and independence, and their veracity in establishing direct contact with both governmental authorities and representatives of the civil society, among other things. A shortcoming of the interactive dialogue was fragmented: the presentations by the special procedures were scattered and the audience was deprived of a general and comprehensive perspective. Moreover, the time allocated to the dialogue was reduced to insufficient slots that were actually disproportionate with the substance of the special procedures presentations and to the amount of energy and resources invested in them.
An improved perception about the ambit of the work of the Commission might also result, given the obvious diversity of countries and topics that would be discussed. The special segment might turn into an useful reform tool as it would allow Member States to appraise better the specific aspects that were susceptible to be improved in terms of streamlining, merging or better defining mandates of various procedures, thus indicating new directions for the reform of the Commission's working methods.
JULIE DE RIVERO, of International Service for Human Rights, said over the years the Commission had developed its role as a monitoring and protection body for human rights. This role was chosen by States themselves, and for more than three decades they had been consistent in creating an array of special procedures to monitor, report on and react to thematic and country-specific human rights concerns around the world, and in this the Commission recognised the need to protect their functions from its own politicisation. The comments of the High-Level Panel about the Commission's lack of credibility and professionalism were not made in reference to the performance of the special procedures but in response to the behaviour of the Member States who willingly undermined the protection and monitoring function of the Commission. The special procedures should be protected, and all States should work harder to develop strategies to reinforce these procedures, particularly as reform discussions evolved.
GARETH SWEENEY, of South Asia Human Rights Documentation Centre, said all were aware of the shortcomings of the Commission in terms of its work on human rights. Pertinent questions of reform rated serious consideration, and the Commission's positive aspects should be consolidated and carried forward, including through strengthening of the special procedures and continued participation of non-governmental organizations in the general debate. Noting that the issue of moving to New York had been raised, he stressed that non-governmental contributions would surely be one positive aspect of the Commission lost in a move to New York, given its historical treatment of non-governmental organizations. It was also regretted that the Secretary-General had not formulated these proposals for reform much earlier in his term of office, instead of rushing through them at this time. All concepts should be discussed, instead of fast-tracking one choice that would become irreversible.
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